Hanover Ins. Co. v. Nelson Conveyor & Machinery Co., 61448

• Decision Date: 19 June 1981
• Docket Number: No. 61448,61448
• Citation: 282 S.E.2d 670,159 Ga.App. 13
• Court: Georgia Court of Appeals
• Parties: HANOVER INSURANCE COMPANY v. NELSON CONVEYOR & MACHINERY COMPANY et al.

Page 670

282 S.E.2d 670

159 Ga.App. 13

HANOVER INSURANCE COMPANY v. NELSON CONVEYOR & MACHINERY COMPANY et al.

No. 61448.

Court of Appeals of Georgia.

June 19, 1981.

Willis J. Richardson, Jr., Savannah, for appellant.

Kenneth S. McBurnett, Pembroke, for appellees.

POPE, Judge.

Appellant Hanover Insurance Company brought this action in trover against appellees seeking damages and the rental value of a 1971 Kenworth tractor to which Hanover claimed title. We granted an application for interlocutory appeal in order to review the trial court's denial of Hanover's motion for summary judgment.

1. Hanover contends that the trial court erred in denying that portion of its motion for summary judgment which alleged a conversion by appellees resulting from their holding and refusing to deliver the tractor, the same being a specific chattel to which Hanover claimed title. " 'The issue in an action of trover is ordinarily one of title, and the gist of the action is conversion, that is to say, that the defendant has wrongfully deprived the plaintiff of possession. Where such a state of facts exist trover will lie.' " Abney v. M. B. Thomas, etc., Co., 93 Ga.App. 224 (1), 91 S.E.2d 189 (1956).

The record shows that the subject vehicle was involved in an accident while hauling a load of steel near Knoxville, Tennessee. Since the accident blocked the road and appellees were unable to arrange for someone else to clear the wreckage, a crew was dispatched from appellees base of operations in Pembroke, Georgia to handle the clean-up and salvage. The tractor was returned to Pembroke. A dispute arose as to whether Hanover, as appellees' insurance carrier, was obligated to pay for the clean-up and salvage operation.

The record also shows a bill of sale and a certificate of title which transferred ownership of the tractor from appellees to Hanover for $13,500 and apparently in settlement of the insurance claim. When Hanover demanded possession of the tractor after the sale, appellees refused. Hanover contends that appellees admitted that Hanover owned the tractor and had title thereto. Indeed, the deposition of Dennis E. Nelson, appellees' president, supports Hanover's contention. However, in his affidavit opposing the summary judgment, Nelson contends that appellees' costs in the clean-up and salvage operation were part of the consideration for the sale of the tractor and that this consideration has not been paid.

"The plaintiff [Hanover], as movant for summary judgment, has the burden of establishing the absence of any genuine issue of material fact and of [its] right to recover as a matter of law. [Cit.] The [appellees], as the [parties] opposing the motion, [are] entitled to all favorable inferences and the evidence is to be construed most strongly in [their] favor. [Cit.] '(A)ll the evidence adduced on said motion, including the testimony of the party opposing the motion, must be construed most strongly against the movant.' " Ga. Health Care, Inc. v. Loeb, 151 Ga.App. 350 (1), 259 S.E.2d 734 (1979). However, Nelson's affidavit to the effect that he thought the cleanup and salvage costs were to be a part of the consideration for executing the bill of sale and certificate of title conflicts with the only consideration set forth on the bill of sale, viz., $13,500. Although permissible to inquire into consideration, where the principles of justice require it, one of the parties to a contract cannot, under the guise of inquiring into consideration, engraft upon the contract a new condition which imposes an additional affirmative obligation upon the other party. Stonecypher v. Ga. Power Co., 183 Ga. 498 (3), 189 S.E. 13 (1936); Code Ann. § 38-501. Since appellees' assertions regarding the clean-up and salvage costs would impose an additional affirmative obligation upon Hanover, such evidence does not, in light of Nelson's deposition, create a genuine issue of fact as to Hanover's right to possession of the tractor. See Motz v. National Bank of Ga., 156 Ga.App. 871, 275 S.E.2d 809 (1981); Whiteside v. Douglas County Bank, 145 Ga.App. 775 (2), 245 S.E.2d 2 (1978). In any event, since appellees did not raise failure of consideration as an affirmative defense in their pleadings, such a defense was waived and could not be raised by affidavit in support of a motion for summary judgment. First Nat. Bank v. McClendon, 147 Ga.App. 722, 250 S.E.2d 175 (1978); New House Products v. Commercial Plastics, etc., Corp., 141 Ga.App. 199 (1), 233 S.E.2d 45 (1977); Code Ann. § 81A-108(c). Therefore, to the extent that the trial court found that a material issue of fact remained as to the title of the tractor, the order denying Hanover's motion for summary judgment is reversed. Cf. Evans v. Equico Lessors, 140 Ga.App. 583, 231 S.E.2d 534 (1976).

2. In its petition Hanover sought to recover $5000 as the value of the tractor plus $1200 per year from May 16, 1979 as the tractor's rental value. "The plaintiff in an action to recover personal property may elect whether to accept an alternative verdict for the property or its value, or whether to demand a verdict for the damages alone, or for the property alone and its hire, if any; and it shall be the duty of the court to instruct the jury to render the verdict as the plaintiff may thus elect." Code Ann. § 107-105. Under the present state of the pleadings Hanover has apparently elected to pursue a money verdict--the value of the tractor at the date of conversion with reasonable hire from that date to the date of trial. Commercial Auto Loan Corp. v. Baker, 73 Ga.App. 534 (4), 37 S.E.2d 636 (1946). See also Jaques v. Stewart, 81 Ga. 81 (2), 6 S.E. 815 (1888); Norred v. Dispain, 119 Ga.App. 29 (5), 166 S.E.2d 38 (1969); Smith v. Duke, 6 Ga.App. 75 (2) ( 64 S.E. 292) (1909). However, the record discloses considerable dispute as to the value of the tractor and its rental value. Accordingly, a jury question remains as to the amount of Hanover's recovery. Home Ins. Co. v. Cook, 96 Ga.App. 139 (3), 99 S.E.2d 567 (1957).

3. In...